New Compromise Bill Weakens State-Level Protections, Leaves Vulnerable Groups at Risk

On May 23, the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) introduced the Chemical Safety Improvement Act of 2013. The bill would amend the 1976 Toxic Substances Control Act, the nation's primary and outdated chemical safety law. Despite being promoted as a significant reform, the proposed legislation fails to improve the health and safety protections missing from current law. As it stands, it represents a significant retreat from the Safe Chemicals Act of 2013 that Lautenberg introduced earlier this year. The earlier bill should be the senator’s legacy.

The Need for New Protections from Toxic Chemicals

The Toxic Substances Control Act of 1976 (TSCA) has proved itself inadequate for regulating chemicals and ensuring that products are safe for the public. The U.S. Environmental Protection Agency (EPA) does not have sufficient authority to test and regulate the more than 80,000 chemicals currently in use.

TSCA got off to a terrible start by immediately exempting from any safety review the 62,000 chemicals in commerce at the time the law was passed. The law is written in a way that prevents EPA from requiring testing for all but about 200 chemicals, and that testing has resulted in partial restrictions on the use of just five chemicals.

Under TSCA, the burden of proof falls on the EPA to prove a chemical poses a health risk, rather than on chemical companies to prove the safety of their products. In fact, under TSCA, companies only have to submit safety data "if they have it." However, there is no legal obligation for chemical companies to research the potential health risks of their products before selling them to the public. This creates a perverse incentive to avoid such health research, since any problems discovered could be used by the government to limit use and thereby reduce profits. Without the ability to address the continual growth of chemicals in use, EPA cannot protect public health and the environment. In the meantime, countless Americans are being exposed to potentially toxic chemicals.

Senator Lautenberg’s Earlier Reform Bill

Over the years, policymakers have proposed legislative remedies to strengthen EPA's authority on chemical safety, but Congress has not passed any of these measures. In April, Lautenberg re-introduced the Safe Chemicals Act of 2013 (S. 696) to increase chemical safety, improve consumer access to information on chemical hazards in products, and protect vulnerable populations, such as low-income communities, children, and pregnant woman. The bill would require that chemical companies show their products are safe before they are included in consumer goods such as baby cribs and children's toys. The legislation, which is identical to the bill passed by the Senate's Environment and Public Works Committee last year, was strongly opposed by the chemical industry.

Reports indicated that Vitter had been working on a competing bill, which was written with help from the American Chemistry Council. Unexpectedly, the two senators joined forces shortly before Lautenberg's death to introduce a significantly narrower and more industry-friendly bill, which environmental and public interest organizations say pales in comparison to the Safe Chemicals Act.

Compromise Bill Fails to Protect Vulnerable Populations and Communities

The new bill, which came as a surprise to public health and environmental organizations, is an "unacceptably weak response to the chemical exposure problems American families face every day," stated Ken Cook, president of the Environmental Working Group.

Unlike the Safe Chemicals Act of 2013, the Chemical Safety Improvement Act fails to protect vulnerable populations that may be particularly susceptible to chemical exposures, such as children, developing fetuses, or those that might receive disproportionately high exposures, such as low-income communities living near toxic facilities. The new bill lacks any references to protecting children, infants, pregnant women, or the elderly. In contrast, children were specifically referenced 16 times in the Safe Chemicals Act.

The bipartisan bill also dropped provisions that were included in the Safe Chemicals Act that direct EPA to establish a Children's Environmental Health Research Program within 90 days to understand the "vulnerability of children to chemical substances and mixtures."

In addition, the new bill has eliminated provisions that called for more research on minority and low-income populations disproportionately exposed to toxic chemicals ("hot spots"). The Safe Chemicals Act would have required EPA to identify communities that are disproportionately exposed to toxic chemicals and to publish and update a list of these localities and develop plans for each.

Compromise Bill Affords Strong Secrets Protections to Industry

In stark contrast to the weakened and eliminated protections for children and other vulnerable populations, the new legislation creates strong protections for industry's confidential business information (CBI). Though the bill requires companies to provide upfront justification for CBI claims, it does not require the EPA to review all of the claims because significant categories of information would be presumed confidential. Moreover, any CBI claims made before the law is passed would be grandfathered in, preventing the EPA from requiring substantiation of these claims – unless the claims are for chemical identities or information that the EPA classifies as high-priority.

Currently, under TSCA, companies are allowed to demand that health and safety information of common chemicals be withheld from the public and medical professionals. The new bill would not significantly change that reality. The Environmental Working Group published a study in December 2009 documenting that the names and other information for 17,000 of more than 80,000 chemicals currently in commercial use had been labeled "trade secrets" and thus remain hidden from the public. The U.S. Government Accountability Office testified that about 95 percent of the notices that companies send to the EPA include information labeled "confidential."

The new bill would also make it difficult for medical personnel to learn the identity of secret chemicals when treating patients potentially exposed to those chemicals. It would require EPA to follow detailed procedures before allowing medical personnel to access confidential information. Moreover, the definition of which medical personnel can access confidential information would be narrower than the Safe Chemicals Act proposed. In emergency situations, the new bill only allows treating physicians or nurses to obtain the information. In nonemergency situations, only health professionals "employed by a Federal or State agency" or treating physician or nurse may obtain the information.

The Safe Chemicals Act aimed to reduce CBI claims by limiting the conditions under which the industry can claim CBI:

• All CBI claims would have to be justified up front;
• EPA would be required to review all CBI claims, or a "representative subset," and only approved claims would stand;
• Approved claims would expire after no more than five years, except for types of claims for which EPA determines the five-year term would not apply; and
• Workers and local and state government officials would have access to CBI, so long as they protect the information's confidentiality.

Recently, the EPA took small steps to limit the information that can be claimed as confidential business information under TSCA to ensure that only legitimate claims are granted such protections.

Compromise Bill Would Preempt State Law – Even When No Federal Standards Have Been Established

The Lautenberg-Vitter bill would also preempt local and state chemical laws, even in cases where EPA has not regulated a particular chemical.

California is far ahead of EPA in regulating dangerous chemicals, and its efforts to do so would be vitiated under the proposed TSCA reforms. Under California's primary chemicals law, Proposition 65, the state publishes a list of chemicals known to cause cancer or reproductive harm. Companies must notify state residents about significant quantities of the listed chemicals found in consumer products or building materials, or significant releases into the environment. To compile its list, California often requests additional test data from industry. Because California’s economy is so large, and manufacturers want to sell their products there, the state’s health and environmental standards can immensely impact the behavior of producers across the country.

Other states have also enacted legislation to protect their citizens and the environment from harm. Minnesota has banned dangerous chemicals, such as bisphenol A (BPA) from use in children's products and formaldehyde from use in children's personal care products like shampoos and bubble baths. Similarly, Washington State requires manufacturers of children's products to report when chemicals used in those products are considered dangerous. Information on current state legislation related to toxic chemicals can be found on the Safer Chemicals website.

However, the Lautenberg-Vitter bill bars any state from mandating the development of test data or information on a chemical if similar data must be submitted to EPA, and it would preempt protective state laws without requiring that EPA adopt comparable protections. The bill would prohibit a state from issuing new restrictions for chemicals that EPA has classified as either high- or low-priority for a safety assessment and determination and from creating or enforcing a restriction on the manufacture, processing, distribution, or use of a chemical once the safety determination is completed.

For chemicals that EPA considers "low-priority" – those that are likely to meet EPA's safety standard – the legislation prohibits EPA from ever performing a safety assessment or issuing safeguards to protect the public from exposure. For a chemical that EPA considers "high priority," meaning that it has a high risk of being a health hazard or being released into the environment, EPA will perform a safety determination, although the bill provides no deadline by which this determination must be completed. Moreover, states would be prohibited from regulating "high-priority" chemicals, even if EPA never gets around to doing so.

While the legislation provides that EPA may authorize state standards, the circumstances under which EPA may do so are limited, and states are unlikely to meet the requirements to regulate on their own.

Compromise Bill Requires Cost-Benefit Analysis Biased Toward Business

Another significant concern with the proposed legislation is that it requires EPA to perform cost-benefit analysis when deciding whether to restrict, phase out, or ban a dangerous chemical. The Fifth Circuit Court of Appeals used this methodology to invalidate EPA's proposed ban on asbestos. The Lautenberg-Vitter bill would codify the Fifth Circuit test, widely believed to have fatally weakened the original TSCA.

The Safe Chemicals Act, in contrast, does not require EPA to perform cost-benefit analysis when deciding how to best protect public health or the environment.

The Right Legacy

Lautenberg died on June 3. He had been pushing for reform of our broken chemical safety system for years before his death. The compromised Chemical Safety Improvement Act does not address the fundamental problems built in to the original Toxic Substances Control Act. It would be a travesty of justice and history if the Lautenberg legacy were to be a compromised bill that undermines state standards, leaves vulnerable groups unprotected, and codifies the cost-benefit methodology that made the original TSCA unworkable.

Rather than accept this reform bill, members of Congress who are serious about health and safety reforms should return to Lautenberg’s original legislation, the Safe Chemicals Act of 2013. This would be a fitting tribute to the extraordinary career of a senator who was such a strong advocate for reform. With his passing, we have lost an important champion for the American people. Let us hope someone else steps in to take leadership on this important issue.

The Center for Effective Government's Open Government Policy and Regulatory Policy teams both contributed to this article.

Editor's note: This article has been updated since its original publication date to clarify the sections on confidential business information and cost-benefit analysis.